Hi all,
I’m happy to share with you a special collaboration between The Intercept and The American Prospect, co-authored by me and The Prospect’s writing fellow Marcia Brown.
The piece looks at an important federal tool that has largely fallen by the wayside in recent years: statutory overrides. (Also goes by names like ‘judicial overrides’ and ‘court overrides’ and ‘Congressional overrides.’) But the basic gist is that there are two kinds of court rulings: constitutional decisions and statutory decisions. In the latter, judges may rule that how a law was applied in a specific circumstance was not how Congress intended, and therefore illegal. The Court gets to interpret the statute, it doesn’t have the final word on congressional intent.
We’re living in a period when millions of people are feeling pretty anxious about the Supreme Court, and legal scholars are debating ways that perhaps we could tinker with the system to make it more fair and less ideological. Marcia and I make the case in this piece that statutory overrides have to be a bigger part of that conversation.
The most famous statutory override of the last two decades was in 2009, the Lilly Ledbetter Fair Pay Act. It was the first law Barack Obama signed as president, and it addressed gender pay discrimination. Lilly Ledbetter had worked at a Goodyear Tire and Rubber plant for nearly twenty years, and as she neared retirement, she learned she was being paid hundreds of dollars less per month than the lowest-paid man in her position, and significantly below the average man.
Ledbetter sued under Title VII of the Civil Rights Act, which guarantees equal treatment in the workplace, and her case went all the way up to the Supreme Court. But in 2007, the Supreme Court ruled that the statute of limitations on Ledbetter’s claims had expired, and she would have had to have sued shortly after being hired at Goodyear.
This was ridiculous because Ledbetter didn’t know until much later on that she was being discriminated against. The Court’s ruling meant she and millions of other people like her were effectively barred from relief.
Justice Ruth Bader Ginsburg wrote a dissent that urged Congress to intervene. The court’s interpretation, Ginsburg said, was out of step with modern wage discrimination and the realities of the workplace. She recommended Congress amend the law and fix the court’s “parsimonious reading.”
Democrats pledged to fight the decision the first chance they got. And they did! They rewrote the statute so that the clock would start ticking on the statute of limitations each time a discriminatory paycheck was issued, not at the time an employee was first hired.
The notable thing about the Lilly Ledbetter Fair Pay Act, is how rare it actually was for Congress to do. And how many more court decisions there are like Lilly Ledbetter’s where Congress could amend an existing statute to effectively override the Court’s ruling. We broke out the project into eight categories, ranging from immigration and the economy to civil rights, and discussed specific statutory decisions Congress could tackle.
This would certainly be easier to do if Democrats regain control of the Senate, but even if they don’t, lawmakers could still force the passage of individual overrides on must-pass legislation, and there are some areas we found where bipartisan compromise seems more likely. As we say in the piece, some of this is about finding the right window of opportunity, but a great deal is about refocusing the minds of federal lawmakers, who have for too long accepted the rulings of the Supreme Court as intractable, when they have the power to respond in many instances.
It’s hopefully a way to kick start a larger conversation, and you can read that here.
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I also wrote a piece about another statewide runoff happening in Georgia on January 5, the same day voters will be casting ballots for the U.S Senate. The runoff is for Georgia’s Public Service Commission, which is a relatively obscure but highly consequential body that sets things like utility bill rates and investments into renewable energy. I wrote about Daniel Blackman, the Democratic candidate who is running on lowering energy bills, tackling the climate crisis, and taking on the powerful Georgia Power utility company. You can read about that race here.
And as a brief update to some older reporting:
In the spring of 2019, I wrote two stories on the Trump administration’s efforts to roll back union rights for home care workers. It was a years-long plan pushed by conservative think tanks, and built off a strategy pioneered in Michigan in 2013. In 2019 Health and Human Services passed a rule that eliminated the ability of home care workers who work with Medicaid beneficiaries to deduct union dues from their paychecks. In practice this makes it much harder to be in the unions themselves. After Michigan banned the same thing in 2013, SEIU Healthcare Michigan saw an 84 percent drop in membership and a 74 percent drop in revenue.
The Trump administration’s rule affected 800,000 workers nationwide. But last week a federal court found the rule was illegally promulgated and scrapped it! And now it’s likely dead for good with the election of Biden. If you’re interested you can read my story on that lawsuit, and the judge’s final decision here.
Thanks for subscribing, and I hope you all had a warm and safe Thanksgiving.